Scott O’Connell is chair of the Litigation Department and a member of the firm's Management Committee. He is a trial lawyer known for his perseverance, strategic thinking and value driven service for clients. Scott focuses in class action and aggregate litigation and corporate governance and control contests. He is currently representing financial services and health care companies in high exposure disputes with associated significant reputational harm in parallel civil, criminal and regulatory proceedings.
What do you focus on?
I currently focus my practice in three areas of risk exposure:
Class Action Defense and Aggregate Litigation
Class actions are costly and disruptive because they attack products, services and business processes. The exposure can be substantial. I work closely with businesses to find and implement solutions that limit accruing exposure while also defending the case.
- I have defended financial service companies from consumer class actions in 12 different states. Most recently, I successfully upheld a class action waiver and compelled arbitration in an opinion from the Ninth Circuit Court of Appeals en banc in which co-defendants reportedly settled the same claims for in excess of $100 million.
- In my largest case last year, I acted as co-counsel for a consortium of over 300 health care providers and a class of 6,000 in an action that challenged state legislation that attempted to confiscate $110 million in a quasi-governmental malpractice defense fund. After four years of battles in multiple courts and regulatory and legislative forums, we secured a judgment and the return of $110 million to the class.
- I’ve also defended companies in multiple federal courts around the country from aggregate claims alleging Nuisance, Wage & Hour and Unfair and Deceptive Trade practices.
Crisis Intervention, Internal Investigations and Corporate Victim Protection
Catastrophic events, health and safety issues or corporate integrity matters can destroy a company. Intervening quickly to manage the parallel criminal, regulatory and civil proceedings as well as the challenges presented by social media is essential to restore the brand. I have considerable experience counseling companies through these types of emergent situations.
- I currently represent a New Hampshire hospital as coordinating counsel in the criminal, regulatory, and civil actions arising from the infection of patients with Hepatitis-C allegedly by a former employee at the hospital. Acted as lead counsel in the defense against a putative class action brought by a plaintiff who claimed to be one of 32 patients infected while undergoing medical procedures at the hospital. The plaintiff sought formation of two sub-classes: one for patients that tested positive for the same strain of Hepatitis-C as the former employee, and another for any patients of the hospital who were contacted in 2012 and told that they may be infected with Hepatitis-C, but tested negative. Class certification was denied under both theories. Separate individual actions are pending.
Directors’ and Officers’ Liability, Governance and Fiduciary Litigation
I counsel and defend directors, officers, members and trustees of public, private and nonprofit charitable institutions for claims arising from their duties. I represented outside directors of a bank holding company sued for civil RICO, joint ventures in technology companies for breach of fiduciary duties and shareholders in closely held businesses in control contests.
- I currently represent the directors and officers of Massachusetts public company in a class action brought by shareholders claiming breaches of fiduciary duty arising from a planned merger with another company.
Tuttle v. State of New Hampshire — Co-Lead Counsel in successful state constitutional challenge of insured medical providers stopping the transfer of $110 million from the New Hampshire Medical Malpractice Joint Underwriting Association to the general fund. Trial court found the legislation an unconstitutional taking of property and an unconstitutional impairment of contract. On appeal, the New Hampshire Supreme Court affirmed in a 3 to 2 decision finding the legislation to be an unconstitutional impairment of contract.
Hair Excitement v. L’Oreal USA — Lead trial and appellate counsel in defense verdict after 5 day trial in which plaintiffs unsuccessfully sought $10 million in damages for alleged unfair and deceptive trade practices under RSA 358-A. The trial judge ruled that L’Oreal’s anti-gray market and anti-diversion campaigns which resulted in the termination of the plaintiff’s rights to its product was not unfair and deceptive trade practices. The New Hampshire Supreme Court affirmed and made new law that RSA 358-A does not provide a right to a jury trial.
Honsador Holdings et al. v. Key Principal Partners — Lead defense trial counsel in six week jury trial in Hawaii for breach of fiduciary duty and unfair and deceptive trade practices. Plaintffs sought $120 million in damages but obtained judgment for much less and under the final demand.
Palmer v. Champion Mortgage, — Successful appeal in the First Circuit Court of Appeals on an issue of first impression concerning the limitations period for the right of recission under the Truth in Lending Act ("TILA).
Smart v. American Welding and Tank, — Lead defense trial counsel in defenseof wrongful death contribution action. After being assessed contribution, successfully got the case reversed and had no liability assessed. Indeed, was awarded attorneys'' fees and costs at the conclusion of the case.